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February 25, 2002

Dear ASMP members and other interested parties:

In a message to participants on the EP mail list service Michael Grecco, a member of the board of EP and Chairman of the Coalition of Visual Artists, indicated that he has started an effort to hire what he refers to as an "industry lobbyist" to represent "photographers and illustrators" in Washington. He then refers to an attempt to get ASMP support of this effort, and publishes his letter to the President of ASMP in which he questions the ASMP decision not to support this effort that he is advocating. Then he suggests that ASMP members participating on the EP list-serve contact the ASMP National Board and lobby it to support his point of view.

What Mr. Grecco fails to do is provide the reasons that ASMP has given for not supporting that effort at this time. He has all of this information in his possession. Because he has not given the ASMP an opportunity to respond, we are responding to ASMP members by the best means available to us, and we feel we must make our position public since he addressed his message to a wider audience than ASMP.

In effect Mr. Grecco, as a director of EP and the chairman of CVA, has interjected himself into the internal affairs of a sister organization, of which he is not a member. His action is not the way to promote cooperation between creators’ groups. More importantly, his misleading statement to photographers, especially ASMP members, on the EP list-serve is a disservice to all. That disservice arises out of his act of turning a coalition into a competition.

For the sake of ASMP members and other interested parties, ASMP is providing this information so that anyone interested can read ASMP’S considered point of view and decision. Readers should feel free to direct any interested party to this site if they have any concern about this matter.

ASMP has been unjustly singled out
The CVA consists of the following organizations:

• APA/Advertising Photographers of America
• ASMP/American Society of Media Photographers
• EP/Editorial Photographers
• GAG/Graphic Artists Guild
• IPA/Illustrator's Partnership of America
• NPPA/National Press Photographers Association
• PPofA/Professional Photographers of America

The ASMP has rejected Mr. Grecco’s call to hire a lobbyist, but what he fails to point out is that GAG and PPA have not agreed to support that activity, either. ASMP is joined in its course of action with the two other creators’ organizations in CVA with the most extensive experience in lobbying issues in Washington. Yet, Mr. Grecco singles out ASMP as some kind of maverick, by omitting to tell anyone that we are not the only major organization to decline support.

A lobbyist would duplicate certain regular operations
One reason advanced by Mr. Grecco and his supporters is that a lobbyist is needed to present a regular presence on Capital Hill representing the interests of creators. ASMP simply asks "to represent our interests in what?" ASMP, GAG and PPA monitor legislation on a regular basis. We also share information with each other (as well as other creators’ groups). Of the more than 1000 bills introduced in Congress every year, less than 1/2 percent of them involve creators’ interests. Of those that do few, if any, ever receive any attention, and the bills expire with no hearings or other action. When we detect a bill that deserves our consideration we act accordingly, notify other interested parties and begin to track its path so we can determine if it is gaining headway that has to be stopped or not gaining headway and has to be pushed.

Further, ASMP is not simply reactive in Washington. ASMP representatives meet with government representatives from time to time to explore the possibilities of new legislation and regulation to benefit photographers and other creators. We are not simply sitting on our hands. Yes, we could pay a lobbyist to do these things, but why duplicate effort or expense? We do not need a lobbyist to monitor legislation. Nor, do we need one to express our point of view to Representatives, Senators, or their staffs. ASMP, GAG, and PPA have no problem getting access to them. We have all been heavily involved in legislative advocacy and we are known on the Hill.

Another reason seemingly implied by Mr. Grecco is that a professional lobbyist will be more effective in congressional contacts than association leaders. This is not substantiated by the facts. Professional lobbyists are seen as what they are – "hired guns" working for whoever will pay them. Association leaders are seen as the true voice of their constituencies. Anyone can send in a salesman, but the best way is the personal way. If a high percentage of legislation directly affected creators, it might be a different story. Volume could require a fulltime presence. However, if that were the case, we could set up a CVA Washington representative who would work for us full time for the same amount of money that Mr. Grecco advises we would pay for the services of a lobbyist that represents other clients at the same time. Paying $100,000 annually to share a lobbyist with his other clients is too much for a part time worker when we could develop a better alternative were it needed, and it is not needed.

Mr. Grecco and his supporters believe that we have specific lobbying opportunities that require a lobbyist now. Remember, Mr. Grecco has no intelligence-gathering entity on the Hill at this time. ASMP, GAG, and PPA share intelligence and we say there is no need for the lobbyist proposed by Mr. Grecco at this time because there is no chance of success at this time. In the following section we will elaborate on our position issue by issue.

Lobbying for an antitrust exemption
Mr. Grecco and his supporters have proposed that an effort to gain an exemption from antitrust restrictions on independent contractors be made by seeking legislation through the services of a lobbyist. ASMP believes that this effort would be an abject failure, based on the following facts.

Three years ago, doctors sought an exemption from antitrust law. They said that the disparity of power between the HMO's and insurance companies and the individual doctor was so great that they were forced to take fees that would not sustain them and the quality of medical care was being affected. Doctors, supported by the powerful and wealthy AMA, got a bill in the House. It failed. They could never get a companion bill in the Senate. The bill was not offered in the subsequent Congressional sessions. Voters don’t like HMO’s and insurance companies, but they don’t have any pity for doctors, so there was no popular support. It is unlikely that there would be any for creators. The doctors’ defeat raises serious questions in ASMP’s mind and makes us cautious about our chances in a similar effort.

The GAG/UAW had a meeting with Congressman Conyers (Dem. MI Detroit area). Conyers, a senior congressman with clout and closely tied to autoworkers’ unions, indicated that he could get such legislation introduced in the House. He also indicated that there was no way it would pass, but he would do it for the PR benefit, if the UAW wanted it. Well, we don’t need a lobbyist to guide us through a defeat for PR purposes, and we don’t need to spend $100,000+ per year for publicizing a failed attempt at legislation. Conyers' staff can and will do it for us for free. But, why waste energy. It is better to apply that energy elsewhere till the right time comes to attempt to get an exemption.

ASMP’s General Counsel and Executive Director met with Ken Duberstein, a top Republican strategist during the Reagan years, who is now a very well paid lobbyist. He actually laughed when we offered the idea of an exemption from antitrust law. He advised that the House would never pass it, and that a vote would never be likely in the Senate, where it is easy to stop a bill. He also said that, even if it could pass, the White House would veto it. A top level lobbyist and political strategist whose minimum retainer is several hundred thousand dollars per year, and who represents some very heavyweight players told us the idea is "laughable." Who knows best, Conyers and Duberstein or Mr. Grecco and his supporters?

GAG and NWU have been affiliated with the United Auto Workers for years. The UAW is a collective bargaining unit. Neither they nor other unions have sought to take this quest on, but they have studied and researched it. Why hasn’t the UAW gone after this exemption? One reason, I am told, is that the UAW’s full time lobbyists have determined that there is simply not enough support in Congress to even hope to succeed, and there is practically no chance of getting that support.

Reports that ASMP has received indicate that some unions would oppose such an effort by creators because they fear an erosion of their power and membership, if new means and new players are established to conduct such bargaining or fee setting for independent contractors. What happens if unions oppose us in addition to our regular adversaries? The answer to that is we have both labor and management against us. In that case an already hopeless task becomes a fool’s folly.

Opposition has to be anticipated from parties who do not want any independent contractors to get a foot in the door leading to antitrust exemptions or collective bargaining rights. Large corporate interests that have nothing to do with photographers would oppose such legislation for fear that it might set a precedent that would give greater power to the independent contractors with whom they do deal. Prudence dictates that this potential opposition should be considered and evaluated. We know that the advertising, publishing, software, motion picture, and construction industries rely heavily on independent contractors. Which of these are likely to oppose our efforts? We believe that all of them will. We already know that the HMO’s and insurance industry will. Creators groups have faced that kind of opposition before, and when we have, we have never been able to overcome it. Those groups have deep pockets and make substantial campaign contributions. They control far more votes than all of the independent creators in the United States, combined. They have Congressional allies that we can only hope to have some day.

We are not the only ones who monitor legislation. Once introduced, a distinct probability is that independent contractors serving other industries will try to attach themselves to our bill to obtain the same right. If so, the effort could grow from a niche fix to a major, across the board fix. In that case Congress is likely to drop it because it is no longer a fight for an exemption. It becomes a quest for new order in law and politics.

Segments of the photography business hire independent contractors to support photographic operations. Wedding, portrait, school, baby and similar high volume photography businesses rely heavily on freelance photographers. Advertising and catalog studios also rely heavily on hiring independent contractors like assistants, stylists, home economists, scouts, production coordinators and other jobs. We could face opposition from those photography businesses that might see any fee bargaining rights for independent contractors as a detriment to their interests. We experienced creators groups in opposition to one another in legislative efforts in 1989, 1993/94, and in the recently past effort to change copyright registration regulations. The only place we were victorious was in the regulatory arena. Opposition from within your own community is hard to overcome. ASMP would defend its members' interests if they were threatened by others, even if those "others" were our usual allies. The ramifications of these actions must be debated, before any attempt like that proposed is made, whether through a lobbyist or not.

ASMP has also explored support in the House and Senate. The general answer from anyone who supports us morally is that they won’t introduce such legislation because they can’t apply their efforts to something that will surely fail. No one wants to joust with windmills.

Lobbying the Copyright Law
Mr. Grecco and his supporters have also proposed that we begin lobbying in Congress to make changes in the registration provisions of the Copyright Act. The proposals range from eliminating the registration requirement or modifying it to making a publisher’s registration of a collective work serve as registration of the individual contributions to the collective work so that the contributors to the collective work might be eligible for statutory damages and legal costs under it.

Attempts to repeal the registration requirement of the Copyright Law were made by a coalition of creators groups during the 1993 and 1994 Congressional session. ASMP, APA, PPA, GAG, NWU, ASJA and others teamed up to form the Copyright Justice coalition. We lost, and we had several top lobbyists working for us. The most effective argument made against us was that eliminating or changing these sections would make it easier to file infringement lawsuits, and that this would result in countless frivolous legal cases in a society that already has too many lawsuits. We are likely to hear the same argument. What evidence exists that we can overcome this argument this time? There are nearly 2000 pages of testimony from the House and Senate hearings on those bills. All you have to do is read them to see that a renewed effort is a doomed effort. Even librarians and academic institutions opposed us.

It has been suggested that we amend the law to change the timely registration provision of the Copyright Law from three months to one year after the date of first publication. Some Senators and Congressman will support it. The only argument creators can make for it is that they do not get copies of published work back in time to meet the 90 day requirement. The opposition will counter by saying ASMP’s recent victory in getting copyright regulations adjusted for photographers should be adequate because it is no longer necessary to supply a copy of a work "as published", but a copy of the "published" work will suffice. They will insist that regulatory relief is adequate. Congress doesn’t amend laws when amending regulations is adequate. That is what they did in 1993/94. They told us to get regulatory relief, and we did, but photographers are the only ones who got it because Congress singled us out in its recommendation to the Copyright Office. We could get the Copyright Office to change the regulations for other creators much more easily and less expensively than asking Congress to tell the Copyright Office, and we sure do not need a lobbyist to do it for us.

Another proposal is to amend the Copyright Act to allow a publisher’s registration of a collective work serve as adequate to allow the contributors to the collective work to be eligible for statutory damages and legal costs under it.

The publishers who own the copyrights to the collective works will be adamantly opposed to this because, if the law was enacted, we could use their registration to file suit against them for copyright infringement anytime they exceeded the license we gave them. Would you help set someone up to sue you? The argument against us will be that we want to use the publishers’ copyright registration assets, acquired at their effort and expense, against themselves, and that the result will be more frivolous lawsuits. Currently Congress appears packed with legislators that hate lawyers who file lawsuits against big business.

The Register of Copyrights and the General Counsel of the Copyright office has told ASMP that it has no objection to the proposal to amend the law as proposed. They have indicated that they would be neutral. However, they have also indicated that in their opinion such an effort will fail. The Copyright Office, a branch of the Library of Congress, is an arm of the Congress, and as such it has good insights into the fate of copyright legislation. What are they missing in their evaluation?

It’s only $100,000
Mr. Grecco and his supporters have suggested that it will only cost $100,000 a year to hire the lobbyist, and ASMP’s share, if everyone joined in, would only be $13,000 annually. Well, everyone isn’t joining in, and $100,000 won’t get us through one Congressional hearing on a bill. It will pay for routine monitoring and maintenance on the Hill, but we already have that.

What should we do with $100,000 instead of lobbying for the uncertain result in the copyright area? We could help creators register their own works, rather than setting them up to depend on publishers to do it. We could even create a copyright registration service for creators. It would serve all, not just those who license in collective works. ASMP likes those options better than giving the money to a lobbyist for a doomed mission.

Further, $100,000 is just the beginning. That is the base cost for the lobbyist. Any significant lobbying effort creates additional expenses, such as meals, travel and entertainment, that can easily equal or even exceed the lobbyist’s fees.

ASMP pleads not guilty
ASMP decided not to support Mr. Grecco’s proposal for lobbyist at this time. That does not mean never. What ASMP would like to see is the concerns stated above responded to and dealt with professionally, not politically. No rhetoric in the response, just give us a factual basis to evaluate the above research any other way. We also would like Mr. Grecco to provide us with the names (and CASH PLEDGED) of the organizations that have decided to support his proposal. We are in CVA, and you would think that the chairman would provide that information to the coalition members. ASMP has not been given this information while it has been treated as if it were an exception. We call for fair treatment, not a pronouncement of guilt.

These are the reasons why ASMP has decided not to use our members’ dollars to support this particular lobbying effort at this time. If facts and circumstances change, we will be happy to reexamine them. We are here to help photographers, not to squander their dues on ill-conceived efforts. That is why ASMP has been the leading advocate for freelance, publication photographers for nearly 60 years and will continue to be for so long as we use our resources thoughtfully.

Respectfully,
David Harp
Chairman of the Board and President, ASMP